Book review

Reasonable Doubt and the History of the Criminal Trial

Thomas P. Gallanis

N. William Hines Professor of Law, University of Iowa

The research for and writing of this Review was done during my time as Julius E. Davis Professor of Law at the University of Minnesota and Mason Ladd Distinguished Visiting Professor of Law at the University of Iowa. It is a pleasure to thank the University of Minnesota Law School and Law Library and the University of Iowa College of Law and Law Library for excellent research support. It is also a pleasure to thank Daniel Klerman and Robert Levy for comments on a draft of this Review.

The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial, James Q. Whitman. Yale, 2008. Pp ix, 276.

On July 7, 1784, a young man named Richard Corbett stood in London’s main criminal court, the Old Bailey.1 He was not there as a spectator or witness. He was the accused, indicted for arson. The evidence was presented, then the judge summarized the case for the jury. At the end of the summary, the judge gave the jury this instruction: “[I]f there is a reasonable doubt, in that case that doubt ought to decide in favor of the prisoner.”

To modern Americans, the instruction will be familiar. We take pride in the presumption of innocence and in the rule that the defendant must be acquitted if the prosecution does not establish the facts of guilt beyond a reasonable doubt. Indeed, the concept of reasonable doubt and the judge’s instruction to the jury of the prosecution’s burden to satisfy the reasonable doubt standard are hallmarks of our criminal law. Yet what is the history of this reasonable doubt instruction?

Professor James Q. Whitman, an expert in legal history and comparative law, offers an answer in this new book, which brings together the history of the Anglo-American trial by jury and of Continental inquisitorial criminal procedure to shed light on the mystery of the reasonable doubt standard. The book is wide ranging in time and scope, and it is deeply learned. The argument is well articulated and intriguing. The book, in sum, makes an important contribution to our understanding.

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